3/27/2013

SCOTUS and Gay Marriage: Cowards on the Bench:
The best way to think about Supreme Court proceedings is metaphorically: Picture a cat sitting on a dock on a lake. Someone has caught a fish and it's bouncing around, trying to get back to the water. The cat, left to its devices, might play with that fish, bat it around, try to pin it it down, for no good reason, just because it wants to test the limitations of the fish. And at the end, the cat might eat the fish, might just let it die in the air, or maybe help it jump back in the lake to swim away.

So of course a great deal of time was spent yesterday on the Hollingsworth v. Perry case regarding the constitutionality of California's Proposition 8, outlawing same-sex marriage, on issues like standing to bring the case to court and whether gays were a class that deserves equal protection. That can seem like the justices were trying to figure out a way to wimp out on any decision on the overall issue of whether or not the 14th Amendment's guarantees of equal protection under the law extend to the right for dudes to marry dudes and chicks to marry chicks. And it might turn out to be that way. But it could also be that they're just batting around fish just to see how high they flop around until they decide to give the big thumbs up to gay marriage. Look at John Roberts on the Obamacare case. He played with that fish until its scales were falling off, and all the predictions about that outcome were just wrong.

The most fascinating thing about the case yesterday was the way in which same sex marriage was treated as an "experiment," in the words of Charles Cooper, the lawyer for supporters of Prop 8, who said voters in California might have decided "to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing." But, really, every marriage is an experiment, one that starts anew from the moment the deal is sealed when the license is approved. It's two adults getting hitched. Why does where their genitals are positioned during sex have anything to do with an adult decision?

Still, even Justice Sonia Sotomayor wondered, "If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?" Christ, should the South have experimented state by state with freeing slaves? Justice Anthony "Swinger" Kennedy offered, unhelpfully, "We have five years of information to weigh against 2,000 years of history or more."

That information would be the varying studies of how same sex marriage affects children adopted or had by the couple. To that end, let's take a look back at the words of R.D. McIlwaine, assistant Attorney General of Virgina in the Loving v. Virginia case, as argued on April 10, 1967. McIlwaine was defending his state's law that made it a felony for whites and blacks to marry (although anyone of any other race could marry anyone they wanted). Read this and see if it's not pretty much the exact same goddamn thing Cooper is arguing now:

"We start with the proposition, on this connection, that it is the family which constitutes the structural element of society and that marriage is the legal basis upon which families are formed.

"Consequently, this Court has held, in a numerous decisions over the years, that society is structured on the institution of marriage that it has more to do with a welfare and civilizations of the people that any other institutions and that out of the fruits of marriage spring relationships and responsibilities with which the state is necessarily required the deal.

"Text writers and judicial writers agree that the state has a natural direct and vital interest in maximizing the number of successful marriages, which lead to stable homes and families and in minimizing those which do not. It is clear from the most recent available evidence on the psycho-sociological aspect of this question that intermarried families are subjected to much greater pressures and problems then those of the intramarried and that the state's prohibition of interracial marriage for this reason stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent."

Then McIlaine brought out the science, a book he read by a real professor: "It is a statistical study of over 5000 marriages which was aided by the computers of the Harvard Laboratory of Social Relations and the MIT Computation Center. This book has been given statistical form and basis to the proposition that from the psycho-sociological point of view, interracial marriages are detrimental to the individual, to the family, and to society. I do not say that the author of this book would advocate the prohibition of such marriages by law but we do say that he personally and clearly expresses his view as a social scientist that interracial marriages are definitely undesirable that they hold no promise for a bright and happy future for mankind."

Stated flatly, McIlaine was saying that "interracial marriages bequeath to the progeny of those marriages, more psychological problems than parents have a right to bequeath to them."

If there were any difficulties with children of interracial parents at the time, it was probably mostly because the society around them was filled with racist assholes who wouldn't let them just live their lives. One of the things that ended the reign of racist assholes was the Loving decision. But that took courage by the nine justices (and Loving was unanimous, with conservatives and liberals calling "bullshit" on Virginia). Courage was in short supply on the court yesterday by any of the right-wing justices.

Kennedy did say, "There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think?" By the way, the whole "Think of the children" discussion is tiresome, and it demeans the gay couples who want to get married and don't want any fuckin' kids. Cooper's argument on the "procreative" responsibilities to society of married people was almost literally laughed out of the court by Justices Scalia and Sotomayor, albeit for different reasons.

Chief Justice John Roberts invited his lesbian cousin from San Francisco to sit in court yesterday. She wishes to get married to her longtime partner. Roberts engaged in some of the most aggressive questioning of Ted Olsen, who was representing those challenging Prop 8, even going so insultingly far as to say the whole case came down to what you call a committed relationship that's been granted the same rights as a married couple: "[A]ll you're interested in is the label and you insist on changing the definition of the label."

If Roberts doesn't vote to overturn Prop 8, after having his cousin watch, then he's just a sadistic, preening dickhead.